Trouble in tribal lands of Odisha

Close to about 10 pm on November 16, Revenue and Disaster Management Minister Sudam Marndi took to micro-blogging site X and hosted a 25-word post to announce that the proposed ‘Amendment to Regulation-2 of 1956 regarding transfer of tribal lands’ has been withheld.

Two days back, on the eve of Janajatiya Gaurav Divas, the Odisha Cabinet had approved a recommendation of the Tribes Advisory Council (TAC) to amend the Regulation-2 of The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956.

As per the proposed amendment, a member from the scheduled tribe (ST) can gift, exchange for public purposes or obtain loan by mortgaging a plot of land in a public financial institution for agriculture, construction of residential house, higher studies for children, self-employment, business or establishment of small scale industries or transfer it in favour of a person not belonging to ST community for these purposes.

To sell their land, members of ST communities will have to obtain written permission from the sub-collector. If the sub-collector declines to give permission, an ST can appeal to the collector within six months, whose decision shall be final.Six decades back when the Odisha government brought out regulation, now known as Regulation No 2 of 1956, the idea was to protect the land rights of the scheduled tribes.

However, the seemingly forward-looking move – now-withheld – which sought to give tribals flexibility to use their land for personal purposes has landed the Odisha government in a quirky situation and prompted it to put the plan on pause.

REGULATION 2 AND AMENDMENTS

The Orissa Regulation 2 of 1956 was enacted to control and check transfer of immovable properties of tribals in Scheduled Areas of the state. It put a complete ban on transfer of land belonging to ST persons to non-ST persons.

The last amendment to the act was made in 2002 which allows an ST person to transfer his immovable property only to a person belonging to the tribal community besides mortgaging land to any public financial institution ‘only for agricultural purposes.’ Besides, a member of the ST shall not transfer any land if the total extent of his land remaining after the transfer is reduced to less than two acres in case of irrigated land or five acres in case of non-irrigated land.

In 2009, the Revenue and Disaster Management department – the nodal department for management of land resources in the state – again proposed to amend the Regulation 2 for alienation of tribal lands on the ground that due to the total ban on tribal to non-tribal land transfer, ST members are unable to get loans from financial institutions for construction of houses, higher education of children, self-employment etc.

Since obtaining a loan by mortgage of land with a public financial institution is only limited for agriculture purposes, the financial institutions are not entertaining any other loan applications to deserving ST persons, it reasoned. TAC, whose primary role is to advise the governor on welfare and advancement of the STs, approved it. However, the proposal was rejected by the then President Pratibha Patil.

Nine years later in 2018, the Revenue department proposed another amendment to allow STs to mortgage some portions of their land. The matter was placed before an inter-ministerial committee headed by the then revenue minister and later approved by the TAC. However, it was not sent for Presidential assent.

At this year’s TAC meeting on July 11, the department again proposed substituting sub-section (i) of Section 3 of Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956, to allow STs to sell their land to non-tribals. It was also approved by the TAC to be followed by the Cabinet’s move to give a go ahead.

NEED FOR RELOOK

Former chief secretary and Congress leader Bijay Patnaik said the proposed amendment needs a relook by TAC and government. “In what form will this amendment be brought out, what are the compelling reasons behind it and the pros and cons – many questions remain unanswered,” he said.

Patnaik felt there was no threadbare discussion on this crucial amendment by the TAC prior to the Cabinet approval. “Now that it has been put on hold, the TAC members have to re-examine it thoroughly,” said the bureaucrat-turned politician who had initiated a tribal land restoration drive during his tenure as the CS. The conflict between Regulation 2, 1956 (which is older than PESA) and PESA Act, 1996 also needs to be studied, he added.

Sources in the ST and SC Development department said the amendment to Regulation 2 requires Presidential assent. “Cabinet approval is one step towards sending it to the Governor and then to the President for assent. No amendment can be effected without that. Now that the move has been put on hold, the matter will be discussed again in the TAC and then, the proposal will be revisited,” an official said.